Wisker v. Hart

• Decision Date: 09 December 1988
• Docket Number: No. 61090,61090
• Citation: 766 P.2d 168,244 Kan. 36
• Parties: Jewell WISKER, an heir at law and on Behalf of the heirs of Cecil Wisker, deceased, Appellant, v. Dillis HART, M.D.; Mid-America Surgical Group, P.A.; and Ronald B. Davis, M.D., Appellees.
• Court: Kansas Supreme Court

Page 168

766 P.2d 168

244 Kan. 36

Jewell WISKER, an heir at law and on Behalf of the heirs of Cecil Wisker, deceased, Appellant, v. Dillis HART, M.D.; Mid-America Surgical Group, P.A.; and Ronald B. Davis, M.D., Appellees.

No. 61090.

Supreme Court of Kansas.

Dec. 9, 1988.

Syllabus by the Court

1. When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.

2. A claim of error in the trial court's refusal to submit a question of punitive damages is rendered moot by a verdict assessing 60 percent fault to plaintiff's decedent, as recovery of actual damages is essential to a recovery of punitive damages.

3. K.S.A.1987 Supp. 60-3412 prevents the use of "professional witnesses" in medical malpractice actions, all as is more fully discussed in the opinion. The statute was not intended to require that only a physician practicing in a particular specialized area could qualify as an expert witness as to the standard of care of a physician practicing in the same specialized area.

4. The erroneous admission of collateral source evidence pursuant to K.S.A.1987 Supp. 60-3403 (held unconstitutional in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 [1987], and since repealed) is held to be harmless error where the jury found the plaintiff's decedent to be 60 percent at fault and, accordingly, did not determine damages. Our holding in Harrier v. Gendel, 242 Kan. 798, 751 P.2d 1038 (1988), to the contrary is overruled.

Kenneth L. Ingham, and Joel S. Heller, Wichita, were on the briefs for appellant.

James Z. Hernandez, of Woodard, Blaylock, Hernandez, Pilgreen and Roth, Wichita, argued the cause, and Cindy Cleous-Stang, of the same firm, was with him on the brief for appellee Ronald B. Davis, M.D.

William Tinker, Jr., of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, argued the cause, and Quentin E. Kurtz, of the same firm, was with him on the brief for appellee Dillis Hart, M.D.

McFARLAND, Justice:

This is a medical malpractice action wherein the jury found plaintiff's decedent 60 percent at fault. The plaintiff appeals therefrom.

The first issue is whether the verdict is contrary to the evidence.

When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal. Tetuan v. A.H. Robins Co., 241 Kan. 441, Syl. p 1, 738 P.2d 1210 (1987). See In re Adoption of F.A.R., 242 Kan. 231, Syl. p 2, 747 P.2d 145 (1987); Long v. Deere & Co., 238 Kan. 766, Syl. p 1, 715 P.2d 1023 (1986).

The evidence considered in the light most favorable to the defendants may be summarized as follows:

Cecil Wisker was injured on Saturday, September 1, 1984, in a three-wheel motorcycle accident at a state recreational park in Waynoka, Oklahoma. He was taken to the E.L. Clapper Memorial Medical Center emergency room in Waynoka, where he was seen by Dr. James M. Moody. After examining Wisker and his x rays, Dr. Moody diagnosed Wisker as having a non-displaced fracture of the ninth rib on the right side with contusion of the abdominis rectus muscle. Wisker was released from the hospital with instructions: (1) to apply an ice pack to the lower right rib; (2) to take Norflex, a muscle relaxant; (3) to take Tylenol as needed for pain; (4) to refrain from alcohol; (5) to do no strenuous activity or lifting; (6) to call Dr. Moody if he had any problems or difficulties, or, if Wisker was at home in Wichita, to call his family doctor.

On Monday, September 3, 1984, Wisker returned to Wichita from Oklahoma and told his wife, Jewell Wisker, of the accident, showing her his bruised side. He told her he had two fractured ribs, and had been given pain medicine and told to see his family doctor. The next morning Jewell telephoned Dr. Ronald Davis, the family physician, to have him see Wisker. Dr. Davis examined Wisker that day, diagnosed his injuries as rib fractures, a chest injury, and liver and lung contusions, with resulting right shoulder pain. Wisker was told not to go to work that day. Blood samples were taken. Dr. Davis requested hemoglobin and hemotocrit readings from the lab to confirm his opinion there was no internal bleeding. The lab results were returned to Dr. Davis on Wednesday, September 5, 1984, and the lowered blood counts indicated the presence of internal bleeding. Wisker returned to Dr. Davis' office. On September 5 his condition appeared to have worsened. Additional blood tests were taken, with orders for immediate processing. After reviewing the results of the latest blood tests and determining Wisker was having internal bleeding, Dr. Davis decided Wisker needed to be hospitalized and that a surgical consultation was necessary. Dr. Davis then consulted with Dr. Dillis Hart, a surgeon, concerning the care and treatment of Wisker.

Dr. Hart examined Wisker that same day, September 5, following Wisker's admission into St. Joseph Medical Center in Wichita. Dr. Hart diagnosed Wisker as having fractured a rib that punctured his liver, causing a loss of blood. In order to determine whether there was any evidence of active bleeding, Dr. Hart had a peritoneal tap done. A peritoneal tap of the left lower quadrant and the right upper quadrant of the peritoneal (abdominal) cavity indicated no continued internal bleeding. Dr. Hart believed the injury had stabilized. The catheter was left in Wisker until September 6, 1984, to determine whether there was any further bleeding. There was not, indicating the blood where Wisker had initially bled had clotted. Dr. Hart saw Wisker several times a day during his hospitalization period, looking for any change which would signal a need to operate. There was none.

On September 7, 1984, Wisker was discharged from the hospital. His condition was, at that time, stable and his liver was not bleeding. Before discharging him, Dr. Hart explained to Wisker that he had undergone a very significant injury to the chest wall, diaphragm, and liver; that he was healing; and that there was no evidence of continuing internal bleeding. Dr. Hart told Wisker he should not involve himself in strenuous activity, and should not be jogging. Neither activity, he said, should be carried out until after a follow-up visit with Dr. Davis or himself in a week or so. Dr. Hart further told Wisker that his injury was the type of injury that could rebleed, and that the healing process could take as long as twelve to eighteen months. Dr. Davis also counselled Wisker at St. Joseph Medical Center before Wisker was discharged. Dr. Davis told Wisker he should not go to work, do any climbing or sports, or lift anything over fifteen pounds. Dr. Davis further told Wisker that rebleeding would occur if he did not restrict these activities.

Both physicians told Wisker to contact them if his condition changed. Wisker's wife, Jewell, also knew she was to contact either Dr. Hart or Dr. Davis if there was any change in Wisker's condition.

Despite the medical admonitions, Cecil Wisker returned to work on Monday, September 10, 1984. He was a mechanic. He worked every workday (September 10-14) of that week. He returned to Dr. Hart's office on Wednesday, September 12, 1984, for more blood tests. His wife testified Wisker's physical condition had improved that week, he was feeling pretty good, and he was eating better. On Thursday, Wisker worked overtime, for a total workday of 10 1/2 hours.

On Friday, September 14, 1984, Wisker went to work as usual. About 2:40 p.m., he was manually tightening axle nuts on a truck, using a 10-inch vise grips. He was tightening the seventh nut on one of the truck wheels when he said "Ouch," grabbed his side, stood up, and walked over to another part of the shop and put his head down on a bench. A co-worker, Clyde Clarke, asked Wisker what was wrong and told him he should go back to see his doctor. Instead, Wisker sat in the shop for around 30 minutes, then left the shop. Before leaving, Wisker told his supervisor he was not feeling well and wanted to go home. The supervisor granted Wisker permission to leave.

Wisker arrived home about 3:15 p.m. Jewell Wisker noticed a big change in his condition. He was pale, appeared weak, and was bent over and in distress. Jewell was alarmed by his condition and asked him if he would like her to call a doctor. He declined, took a pain pill, and went to bed. At approximately 6:00 p.m., Cecil Wisker came out of the bedroom and fell on the floor. Jewell called Emergency Medical Service for an ambulance. She also called her sister who, when the ambulance had arrived, called Dr. Davis to tell him they were taking Cecil to the emergency room at St. Joseph Medical Center. This was the first call placed to Dr. Davis concerning Cecil Wisker that day. Dr. Davis testified that he told the caller to go to the emergency room, and that he would notify Dr. Hart and the emergency room they were en route. Dr. Hart had not been contacted concerning Wisker since his discharge from the hospital on September 7, 1984.

Wisker arrived at the emergency room at approximately 6:30 p.m. He was in shock, had a weak pulse, and had experienced a massive hemorrhage. A peritoneal tap was performed, showing gross (new) blood. He was immediately taken to surgery in order to find and control the bleeding. After evacuating the blood in the abdominal cavity, active bleeding from a small one-inch laceration in the right lobe of the liver...